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 KUALA LUMPUR, Mon: The worrying trend of escalating divorce rates,
coupled with the recent horrors of children being tortured, sexually molested
and/or murdered, makes it timely for the Malaysian Law Conference to question
whether the law has failed the family unit.
In this day and age, the “regular” family of father, mother and children is no
longer the norm. Single-parent families are becoming increasingly common and
more often than not, it is the wife and mother who is left to care for the
children without any form of financial support from her spouse. This topic
therefore serves to see how the law – or the lack of it – serves to protect
these wives and mothers and their children.
Moderator Vicky Alahakone opened the session by saying that family law is
relevant to all of us. The first speaker was Lalitha Menon, the chairman of the
Penang Bar and the Bar Council’s Family Law Committee.
Ms Menon, who is actively involved in various women’s and children’s
organizations, said the law had failed the family unit on two grounds. The first
is the undue delay in law reform initiatives. This can be seen in legislation
such as the Law Reform (Marriage and Divorce) Act 1976, the Domestic Violence
Act 1994 and the Married Women and Children (Maintenance) Act 1950.
Secondly, the law has failed to respond or cater effectively to meet society’s
changing needs. Some examples were in respect to maintenance claims and domestic
violence. There are no proper family courts in Malaysia, with the exception of
one in Kuala Lumpur.
Also, it is not merely obtaining a maintenance order, but enforcing the order
which gives rise to other problems and difficult situations. As for domestic
violence, the Domestic Violence Act does not make domestic violence a crime, and
in the 21st century, one would think that women have more rights than their
compatriots 20 or 30 years ago.
The second speaker, Foo Yet Ngo, approached the Law Reform (Marriage and
Divorce) Act 1976 (LRA) from a practitioner’s point of view. She discussed a few
key questions, such as “Is the adversarial arena of a courtroom the appropriate
arena?” and “Has the Law Reform Act fulfilled the expectations of its creators?”
As expected, the answer to both the questions is no.
Other topics of discussion included the Recommendations of the Royal Commission
(1971), as well as noticeable trends in Family Law in the UK and whether these
changing trends are also present in Malaysia and whether the LRA had fallen
short of addressing these changing trends.
An important issue to note was the question whether section 76 of the LRA has
the power to order a division of the greater proportion to the party having
custody of the children? Ms Foo suggested that section 76 be amended to grant
the power to divide in general terms.
She also touched briefly on the protection of children and suggested that the
terms “custody” be changed to “parental responsibility.” She also highlighted
the importance of mediation in family matters.
The third speaker, Dato’ Hajah Shamsuriah Sulaiman, spoke on the syariah
perspective of the topic referring to Islamic family laws. According to her,
there are 14 Islamic family law enactments as opposed to only one for civil law.
This has proven to be frustrating and confusing as too many enactments lead to
too many technicalities in the law.
She cited the case of Siti Fauziah v Mohsein (Terengganu Syariah High
Court 91-007-2-2001) as an example. However, she said, Islamic family laws are
slowly moving forward. “Overall, the developments in the syariah courts are
faster than in the civil ones,” she added.
The fourth and final speaker, K. Shanmuga, spoke on a more specific area of the
topic which was “Conversion to Islam by one spouse in a non-Muslim marriage and
the ensuing chaos”.
He began his talk by citing a few well-known cases relevant to the issue, one of
them being Genga Devi a/p Chelliah v Santanam a/l Damodaram [2001] 1 MLJ
526. In this case, the syariah court granted custody of the child to the husband
who converted to Islam despite the order of the civil High Court which granted
Genga the custody of her son. The High Court held that it had no jurisdiction
over the matter, as it could not interfere with the syariah court’s custodial
order. As written in Shanmuga’s paper, “Civil courts tie their hands whilst
syariah courts break free from constitutional constraints.”
Meaning no disrespect, Shanmuga also states that sometimes the conversion to
Islam is used as a common excuse to avoid or escape legal obligations. This is a
point in issue in the recent case of Subashini a/p Rajasingam v Saravanan a/l
Thangathoray [2007] 2 MLJ 798.
Shanmuga also happens to be the solicitor for Subashini in the said
matter. Therefore allowing converts to Islam to obtain a divorce merely for this
purpose opens the opportunity for abuse of the system and thus, there must be
clear provisions in civil legislation to safeguard the normal rights of
non-Muslim spouses such as maintenance, distribution of matrimonial assets and
custody of children in the event the convert to Islam applies for a divorce.
In conclusion, even though the topic given to each speaker was the same, we were
able to see each speaker’s different perspective and approach to the same topic.
To the question at hand, “Has the law failed the family unit?” all the panel
speakers today answered with a unanimous yes. As such, much needs to be done in
the area of family law reform, be it civil or syariah.
It is to be hoped that the law in this area can continue to further develop to
ensure better protection of single parents, especially women, and children in
this country.
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Circular No 297/2008
